Quarterly Report — Form 10-Q Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 10-Q Lhc Group, Inc. HTML 265K
2: EX-3.2 EX-3.2 Bylaws of Lhc Group,Inc. as Amended on HTML 75K December 31,2007
3: EX-31.1 EX-31.1 Section 302 Certification of CEO HTML 14K
4: EX-31.2 EX-31.2 Section 302 Certification of CFO HTML 14K
5: EX-32 EX-32 Section 906 Certification of CEO and CFO HTML 10K
EX-3.2 — EX-3.2 Bylaws of Lhc Group,Inc. as Amended on December 31,2007
This Amendment to the LHC Group, Inc. Bylaws (the “Bylaws”) is made and entered into this 3rd
day of December 2007, by LHC Group, Inc. (the “Company”).
Pursuant to a resolution of the Board of Directors of the Company, in accordance with Article
VIII of the Bylaws, the Bylaws are hereby amended as follows:
1.
By deleting Section 5.1(A) in its entirety and replacing it with the following:
“The interest of each stockholder of the Corporation shall be evidenced by certificated or
uncertificated shares, as provided under the General Corporation Law of the State of
Delaware, and shall be entered in the books of the Corporation and registered as they are
issued. Each stockholder, upon written request to the transfer agent or registrar of the
Corporation, shall be entitled to a certificate of the capital stock of the Corporation.
Certificates representing shares of stock shall be in such form as the appropriate officers
of the Corporation may from time to time prescribe. Stock of the Corporation shall be
transferable in the manner prescribed by applicable law and in these Bylaws. Transfers of
stock shall be made on the books of the Corporation. In the case of certificated shares of
stock, transfers of stock shall be made by the holder thereof in person or by his attorney,
upon surrender for cancellation of certificates for the same number of shares, with an
assignment and power of transfer endorsed thereon or attached thereto, duly executed, and
with such proof of the authenticity of the signature as the Corporation or its agents may
reasonably require. In the case of uncertificated shares of stock, transfers of stock
shall be made upon the receipt of proper transfer instructions from the registered owner of
uncertificated shares or by such person’s attorney lawfully constituted in writing, and
upon compliance with appropriate procedures for transferring the shares in uncertificated
form; such uncertificated shares shall be cancelled, issuance of new equivalent
uncertificated shares or certificated shares shall be made to the shareholder entitled
thereto and the transaction shall be recorded upon the books of the Corporation. No
transfer of stock shall be valid as against the Corporation for any purpose until it shall
have been entered in the stock records of the Corporation by an entry showing from and to
who transferred.”
2.
By deleting Section 5.1(B) in its entirety and replacing it with the following:
“The shares of stock represented by certificates shall be signed, countersigned and
registered in such manner as the Board of Directors may by resolution prescribe, which
resolution may permit all or any of the signatures on such certificates, if any, to be in
facsimile. In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate has ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent or registrar at
the date of issue.”
3.
By adding a new Section 5.1(C) to read as follows:
“Within a reasonable time after the issuance or transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice that shall set
forth the information required to be set forth or stated on certificates pursuant to the
General Corporation Law of the State of Delaware or, unless otherwise provided by the
General Corporation Law of the State of Delaware, a statement that the Corporation will
furnish,
without charge to each stockholder who so requests the powers, designations, preferences,
and relative participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.”
4.
Except as specifically set forth herein, the Bylaws shall remain in full force and effect as
prior to this amendment.
Section 1.1 Delaware Office. The registered office of the Corporation in the State of
Delaware shall be located in the City of Wilmington, County of New Castle.
Section 1.2 Other Offices. The Corporation may have such other offices, either within
or without the State of Delaware, as the Board of Directors may designate or as the business of the
Corporation may from time to time require.
Section 1.3 Books and Records. The books and records of the Corporation may be kept
at the Corporation’s headquarters in Lafayette, Louisiana or at such other locations outside the
State of Delaware as may from time to time be designated by the Board of Directors.
ARTICLE II
STOCKHOLDERS
Section 2.1 Annual Meeting. The annual meeting of the stockholders of the Corporation
shall be held at such date, place and/or time as may be fixed by resolution of the Board of
Directors.
Section 2.2 Special Meeting. Special meetings of stockholders of the Corporation may
be called only by the Chairman of the Board or the President or by the Board of Directors acting
pursuant to a resolution adopted by a majority of the Whole Board. For purposes of these Bylaws,
the term “Whole Board” shall mean the total number of authorized directors whether or not there
exist any vacancies in previously authorized directorships.
Section 2.3 Place of Meeting. The Board of Directors may designate the place of
meeting for any meeting of the stockholders. If no designation is made by the Board of Directors,
the place of meeting shall be the principal office of the Corporation. Notwithstanding the
foregoing, the Board of Directors may, in its sole discretion, determine that the meeting shall not
be held at any place, but shall be held solely by means of remote communication, subject to such
guidelines and procedures as the Board of Directors may adopt, as permitted by applicable law.
Section 2.4 Notice of Meeting. Except as otherwise required by law, written, printed
or electronic notice stating the place, day and hour of the meeting and the purposes for which the
meeting is called shall be prepared and delivered by the Corporation not less than ten (10) days
nor more than sixty (60) days before the date of the meeting, either personally, by mail, or in the
case of stockholders who have consented to such delivery, by electronic transmission (as such term
is defined in the Delaware General
Corporation Law), to each stockholder of record entitled to vote at such meeting. If mailed,
such notice shall be deemed to be delivered when deposited in the U.S. mail with postage thereon
prepaid, addressed to the stockholder at his address as it appears on the stock transfer books of
the Corporation. Notice given by electronic transmission shall be effective (A) if by facsimile,
when faxed to a number where the
stockholder has consented to receive notice; (B) if by electronic
mail, when mailed electronically to an electronic mail address at which the stockholder has
consented to receive such notice; (C) if by posting on an electronic network together with a
separate notice of such posting, upon the later to occur of (1) the posting or (2) the giving of
separate notice of the posting; or (D) if by other form of electronic communication, when directed
to the stockholder in the manner consented to by the stockholder. Meetings may be held without
notice if all stockholders entitled to vote are present (except as otherwise provided by law), or
if notice is waived by those not present. Any previously scheduled meeting of the stockholders may
be postponed and (unless the Corporations’s Certificate of Incorporation (the “Certificate of
Incorporation”) otherwise provides) any special meeting of the stockholders may be cancelled, by
resolution of the Board of Directors upon public notice given prior to the time previously
scheduled for such meeting of stockholders.
Section 2.5 Quorum and Adjournment. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the voting power of the outstanding
shares of the Corporation entitled to vote generally in the election of directors (the “Voting
Stock”), represented in person or by proxy, shall constitute a quorum at a meeting of stockholders,
except that when specified business is to be voted on by a class or series voting separately as a
class or series, the holders of a majority of the voting power of the shares of such class or
series shall constitute a quorum for the transaction of such business for the purposes of taking
action on such business. In the absence of a quorum, any meeting of stockholders may be adjourned,
from time to time, by vote of the holders of a majority of the shares represented thereat, but no
other business shall be transacted at such meeting. At such adjourned meeting at which a quorum is
present or represented, any business may be transacted which might have been transacted at the
original meeting. The stockholders present at a duly called or convened meeting at which a quorum
is present may continue to transact business until adjournment, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum. No notice of the time and place of adjourned
meetings need be given provided such adjournment is for less than thirty (30) days and further
provided that no new record date is fixed for the adjourned meeting.
Section 2.6 Proxies. At all meetings of stockholders, a stockholder may vote by proxy
executed in writing by the stockholder or as may be permitted by law, or by his duly authorized
attorney-in-fact. Such proxy must be filed with the Secretary of the Corporation or his
representative, or otherwise delivered telephonically or electronically as set forth in the
applicable proxy statement, at or before the time of the meeting.
Section 2.7 Notice of Stockholder Business and Nominations.
A. Nominations of persons for election to the Board of Directors and the proposal of business
to be transacted by the stockholders may be made at an annual meeting of stockholders (1) pursuant
to the Corporation’s notice with respect to such meeting, (2) by or at
the direction of the Board of Directors or (3) by any stockholder of record of the Corporation
who was a stockholder of record at the time of the giving of the notice provided for in the
following paragraph, who is entitled to vote at the meeting and who has complied with the notice
procedures set forth in this Section 2.7.
2
B. For nominations or other business to be properly brought before an annual meeting by a
stockholder pursuant to paragraph (A)(3) of this Section 2.7, (1) the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation, (2) such business must be a
proper matter for stockholder action under the Delaware General Corporation Law, (3) if the
stockholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has
provided the Corporation with a Solicitation Notice, as that term is defined in subclause (c)(iii)
of this paragraph, such stockholder or beneficial owner must, in the case of a proposal, have
delivered prior to the meeting a proxy statement and form of proxy to holders of at least the
percentage of the Corporation’s voting shares required under applicable law to carry any such
proposal, or, in the case of a nomination or nominations, have delivered prior to the meeting a
proxy statement and form of proxy to holders of a percentage of the Corporation’s voting shares
reasonably believed by such stockholder or beneficial holder to be sufficient to elect the nominee
or nominees proposed to be nominated by such stockholder, and must, in either case, have included
in such materials the Solicitation Notice and (4) if no Solicitation Notice relating thereto has
been timely provided pursuant to this section, the stockholder or beneficial owner proposing such
business or nomination must not have solicited a number of proxies sufficient to have required the
delivery of such a Solicitation Notice under this section. To be timely, a stockholder’s notice
shall be delivered to the Secretary at the principal executive offices of the Corporation not less
than sixty (60) or more than ninety (90) days prior to the first anniversary (the “Anniversary”) of
the date on which the Corporation first mailed its proxy materials for the preceding year’s annual
meeting of stockholders (for purposes of the first annual meeting of stockholders of the
Corporation held after its initial public offering pursuant to an effective registration statement
under the Securities Act of 1933 (the “Registration Statement”), as amended, covering the offer and
sale of Common Stock of the Corporation to the public, the Anniversary of such annual meeting shall
be January 15 of the following year); provided, however, that if no proxy materials were mailed by
the Corporation in connection with the preceding year’s annual meeting, or if the date of the
annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30)
days after the anniversary of the preceding year’s annual meeting, notice by the stockholder to be
timely must be so delivered not later than the close of business on the later of (x) the 90th day
prior to such annual meeting or (y) the 10th day following the day on which public announcement of
the date of such meeting is first made. Such stockholder’s notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or reelection as a director all
information relating to such person as would be required to be disclosed in solicitations of
proxies for the election of such nominees as directors pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and such person’s written consent
to serve as a director if elected; (b) as to any other business that the stockholder proposes to
bring before the meeting, a brief description of such business, the reasons for conducting such
business at the meeting and any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (c) as to the stockholder
giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is
made (i) the name and address of such stockholder, as they appear on the Corporation’s books, and
of such beneficial
owner, (ii) the class and number of shares of the Corporation that are owned beneficially and
of record by such stockholder and such beneficial owner, and (iii) whether either such stockholder
or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the
case of a proposal, at least the percentage of the Corporation’s voting shares required under
3
applicable law to carry the proposal or, in the case of a nomination or nominations, a sufficient
number of holders of the Corporation’s voting shares to elect such nominee or nominees (an
affirmative statement of such intent, a “Solicitation Notice”).
C. Notwithstanding anything in the second sentence of paragraph (B) of this Section 2.7 to the
contrary, in the event that the number of directors to be elected to the Board of Directors is
increased and there is no public announcement naming all of the nominees for director or specifying
the size of the increased Board made by the Corporation at least fifty-five (55) days prior to the
Anniversary, a stockholder’s notice required by this Bylaw shall also be considered timely, but
only with respect to nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the Corporation not later than the
close of business on the 10th day following the day on which such public announcement is first made
by the Corporation.
D. Only persons nominated in accordance with the procedures set forth in this Section 2.7
shall be eligible to serve as directors and only such business shall be conducted at an annual
meeting of stockholders as shall have been brought before the meeting in accordance with the
procedures set forth in this Section 2.7. The chair of the meeting shall have the power and the
duty to determine whether a nomination or any business proposed to be brought before the meeting
has been made in accordance with the procedures set forth in these Bylaws and, if any proposed
nomination or business is not in compliance with these Bylaws, to declare that such defective
proposed business or nomination shall not be presented for stockholder action at the meeting and
shall be disregarded.
E. Only such business shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting of stockholders at
which directors are to be elected pursuant to the Corporation’s notice of meeting (1) by or at the
direction of the Board of Directors or (2) by any stockholder of record of the Corporation who is a
stockholder of record at the time of giving of notice provided for in this paragraph, who shall be
entitled to vote at the meeting and who complies with the notice procedures set forth in this
Section 2.7. Nominations by stockholders of persons for election to the Board of Directors may be
made at such a special meeting of stockholders if the stockholder’s notice required by paragraph
(B) of this Section 2.7 shall be delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the later of the 90th day prior to such
special meeting or the 10th day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board to be elected at such
meeting.
F. For purposes of this Section 2.7, “public announcement” shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or a comparable national news
service or in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
G. Notwithstanding the foregoing provisions of this Section 2.7, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to matters set forth in this Section 2.7. Nothing in this
4
Section 2.7
shall be deemed to affect any rights of stockholders to request inclusion of proposals in the
Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 2.8 Procedure for Election of Directors. Election of directors at all
meetings of the stockholders at which directors are to be elected need not be by written ballot,
and, except as otherwise set forth in the Certificate of Incorporation with respect to the right of
the holders of any series of Preferred Stock or any other series or class of stock to elect
additional directors under specified circumstances, a plurality of the votes cast thereat shall
elect directors. Except as otherwise provided by law, the Certificate of Incorporation or these
Bylaws, all matters other than the election of directors submitted to the stockholders at any
meeting shall be decided by the affirmative vote of a majority of the voting power of the
outstanding Voting Stock present in person or represented by proxy at the meeting and entitled to
vote thereon.
Section 2.9 Inspectors of Elections:
The Board of Directors by resolution shall appoint one or more inspectors, which inspector or
inspectors may include individuals who serve the Corporation in other capacities, including,
without limitation, as officers, employees, agents or representatives of the Corporation, to act at
the meeting and make a written report thereof. One or more persons may be designated as alternate
inspectors to replace any inspector who fails to act. If no inspector or alternate has been
appointed to act, or if all inspectors or alternates who have been appointed are unable to act, at
a meeting of stockholders, the chairman of the meeting shall appoint one or more inspectors to act
at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and according to the best of
his or her ability. The inspectors shall have the duties prescribed by the Delaware General
Corporation Law.
Section 2.10 Conduct of Meetings.
A. The President and Chief Executive Officer shall preside at all meetings of the
stockholders. In the absence of the President and Chief Executive Officer, the Chairman of the
Board shall preside at a meeting of the stockholders. In the absence of both the President and
Chief Executive Officer and the Chairman of the Board, the Secretary shall preside at a meeting of
the stockholders. In the anticipated absence of all officers designated to preside over the
meetings of stockholders, the Board of Directors may designate an individual to preside over a
meeting of the stockholders.
B. The chairman of the meeting shall fix and announce at the meeting the date and time of the
opening and the closing of the polls for each matter upon which the stockholders will vote at a
meeting.
C. The Board of Directors may, to the extent not prohibited by law, adopt by resolution such
rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate.
Except to the extent inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairman of any meeting of stockholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as,
5
in the judgment of
such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or
procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting,
may to the extent not prohibited by law include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iii) limitations on attendance
at or participation in the meeting to stockholders of record of the Corporation, their duly
authorized and constituted proxies or such other persons as the chairman of the meeting shall
determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement
thereof and (v) limitations on the time allotted to questions or comments by participants.
Unless, and to the extent, determined by the Board of Directors or the chairman of the meeting,
meetings of stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
Section 2.11 Consent of Stockholders in Lieu of Meeting. Following the date the
Registration Statement is declared effective by the Securities and Exchange Commission, any action
required or permitted to be taken by the stockholders of the Corporation must be effected at a duly
called annual or special meeting of stockholders of the Corporation and may not be effected by any
consent in writing by such stockholders.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1 General Powers. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors. In addition to the powers and
authority expressly conferred upon them by statute or by the Certificate of Incorporation or by
these Bylaws, the directors are hereby empowered to exercise all such powers and do all such acts
and things as may be exercised or done by the Corporation.
Section 3.2 Number, Tenure and Qualifications. Subject to the rights of the holders
of any series of Preferred Stock to elect additional directors under specified circumstances, the
number of directors shall be fixed from time to time exclusively by the Board of Directors pursuant
to a resolution adopted by a majority of the Whole Board, and each director elected shall hold
office until his successor is elected and qualified. The directors, other than those who may be
elected by the holders of any series of Preferred Stock under specified circumstances, shall be
divided into three classes pursuant to the Certificate of Incorporation. At each annual meeting of
stockholders, directors elected to succeed those directors whose terms expire shall be elected for
a term of office to expire at the third succeeding annual meeting of stockholders after their
election.
Section 3.3 Regular Meetings. The Board of Directors may, by resolution, provide the
time and place for the holding of regular meetings of the Board of Directors.
Section 3.4 Special Meetings. Special meetings of the Board of Directors shall be
called at the request of the Chairman of the Board, the Chief Executive Officer or a majority of
the Board of Directors. The person or persons authorized to call special meetings of the Board of
Directors may fix the place and time of the meetings.
6
Section 3.5 Action By Unanimous Consent of Directors. The Board of Directors may take
action without the necessity of a meeting by unanimous consent of directors. Such consent may be
in writing or given by electronic transmission, as such term is defined in the Delaware General
Corporation Law.
Section 3.6 Notice. Notice of any special meeting shall be given to each director at
his business or residence in writing, or by telegram, facsimile transmission, telephone
communication or electronic transmission (provided, with respect to electronic transmission, that
the director has consented to receive the form of transmission at the address to which it is
directed). If mailed, such notice shall be deemed adequately delivered when deposited in the
United States mails so addressed, with postage thereon prepaid, at least five (5) days before such
meeting. If by telegram, such notice shall be deemed adequately delivered when the telegram is
delivered to the telegraph company at least twenty-four (24) hours before such meeting. If by
facsimile transmission or other electronic transmission, such notice shall be transmitted at least
twenty-four (24) hours before such meeting. If by telephone, the notice shall be given at least
twelve (12) hours prior to the time set for the meeting. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Board of Directors need be specified in
the notice of such meeting, except for amendments to these Bylaws as provided under Section 8.1 of
Article VIII hereof. A meeting may be held at any time without notice if all the directors are
present (except as otherwise provided by law) or if those not present waive notice of the meeting
in writing, either before or after such meeting.
Section 3.7 Conference Telephone Meetings. Members of the Board of Directors, or any
committee thereof, may participate in a meeting of the Board of Directors or such committee by
means of conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 3.8 Quorum. A whole number of directors equal to at least a majority of the
Whole Board shall constitute a quorum for the transaction of business, but if at any meeting of the
Board of Directors there shall be less than a
quorum present, a majority of the directors present may adjourn the meeting from time to time
without further notice. The act of the majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors.
Section 3.9 Vacancies. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other cause shall, unless
otherwise provided by law or by resolution of the Board of Directors, be filled only by a majority
vote of the directors then in office, though less than a quorum, and directors so chosen shall hold
office until their successor is elected and qualified. No decrease in the authorized number of
directors shall shorten the term of any incumbent director.
7
Section 3.10 Committees.
A. The Board of Directors may designate one or more committees, each committee to consist of
one or more of the directors of the Corporation. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent or disqualified member
at any meeting of the committee. In the absence or disqualification of a member of the committee,
the member or members thereof present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or disqualified member. Any such
committee, to the extent permitted by law and to the extent provided in the resolution of the Board
of Directors, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; provided, however, that no committee
shall have power or authority in reference to the following matters: (1) approving, adopting or
recommending to stockholders any action or matter required by law to be submitted to stockholders
for approval or (2) adopting, amending or repealing any bylaw.
B. Unless the Board of Directors otherwise provides, each committee designated by the Board of
Directors may make, alter and repeal rules for the conduct of its business. In the absence of such
rules each committee shall conduct its business in the same manner as the Board of Directors
conducts its business pursuant to these Bylaws.
Section 3.11 Removal. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any directors, or the entire Board of Directors, may be removed from office
at any time, but only for cause and only by the affirmative vote of the holders of at least a
majority of the voting power of all of the then-outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors, voting together as a single
class.
Section 3.12 Compensation of Directors. Directors may receive such compensation, if
any, for their services, and such reimbursement for expenses, as may be fixed or determined by
resolution of the Board of Directors.
ARTICLE IV
OFFICERS
Section 4.1 Elected Officers. The elected officers of the Corporation shall be a
Chairman of the Board, a President, a Secretary, a Treasurer, and such other officers as the Board
of Directors from time to time may deem proper. The Chairman of the Board shall be chosen from the
directors. All officers chosen by the Board of Directors shall each have such powers and duties as
generally pertain to their respective offices, subject to the specific provisions of this Article
IV. Such officers shall also have powers and duties as from time to time may be conferred by the
Board of Directors or by any committee thereof.
8
Section 4.2 Election and Term of Office. The elected officers of the Corporation
shall be elected annually by the Board of Directors at the regular meeting of the Board of
Directors held after each annual meeting of the stockholders. If the election of officers shall
not be held at such meeting, such election shall be held as soon thereafter as convenient. Subject
to Section 4.7 of these Bylaws, each officer shall hold office until his successor shall have been
duly elected and shall have qualified or until his death or until he shall resign.
Section 4.3 Chairman of the Board. The Chairman of the Board shall preside at all
meetings of the Board and perform such other duties and have such other powers as the Board of
Directors shall designate from time to time.
Section 4.4 President and Chief Executive Officer. The President and Chief Executive
Officer shall be the general manager of the Corporation, subject to the control of the Board of
Directors, and as such shall, subject to Section 2.10 (A) hereof, preside at all meetings of
shareholders, shall have general supervision of the affairs of the Corporation, shall sign or
countersign or authorize another officer to sign all certificates, contracts, and other instruments
of the Corporation as authorized by the Board of Directors, shall make reports to the Board of
Directors and shareholders, and shall perform all such other duties as are incident to such office
or are properly required by the Board of Directors. If the Board of Directors creates the office
of Chief Executive Officer as a separate office from President, the President shall be the chief
operating officer of the corporation and shall be subject to the general supervision, direction,
and control of the Chief Executive Officer unless the Board of Directors provides otherwise.
Section 4.5 Secretary. The Secretary shall give, or cause to be given, notice of all
meetings of stockholders and directors and all other notices required by law or by these Bylaws,
and in case of his absence or refusal or neglect so to do, any such notice may be given by any
person thereunto directed by the Chairman of the Board or the President, or by the Board of
Directors, upon whose request the meeting is called as provided in these Bylaws. He shall record
all the proceedings of the meetings of the Board of Directors, any committees thereof and the
stockholders of the Corporation in a book to be kept for that purpose, and shall perform such other
duties as may be assigned to him by the Board of
Directors, the Chairman of the Board or the President. He shall have custody of the seal of the
Corporation and shall affix the same to all instruments requiring it, when authorized by the Board
of Directors, the Chairman of the Board or the President, and attest to the same.
Section 4.6 Treasurer. The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate receipts and disbursements in books belonging to
the Corporation. The Treasurer shall deposit all moneys and other valuables in the name and to the
credit of the Corporation in such depositaries as may be designated by the Board of Directors. The
Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors
the Chairman of the Board, or the President, taking proper vouchers for such disbursements. The
Treasurer shall render to the Chairman of the Board, the President and the Board of Directors,
whenever requested, an account of all his transactions as Treasurer and of the financial condition
of the Corporation. If required by the Board of Directors, the Treasurer shall give the
Corporation a bond for the faithful discharge of his duties in such amount and with such surety as
the Board of Directors shall prescribe. The Treasurer shall also perform such other
9
duties as may
be assigned to him by the Board of Directors, the President or Chief Executive Officer.
Section 4.7 Removal. Any officer elected by the Board of Directors may be removed by
the Board of Directors whenever, in their judgment, the best interests of the Corporation would be
served thereby. No elected officer shall have any contractual rights against the Corporation for
compensation by virtue of such election beyond the date of the election of his successor, his
death, his resignation or his removal, whichever event shall first occur, except as otherwise
provided in an employment contract or an employee plan.
Section 4.8 Vacancies. A newly created office and a vacancy in any office because of
death, resignation, or removal may be filled by the Board of Directors for the unexpired portion of
the term at any meeting of the Board of Directors.
ARTICLE V
STOCK CERTIFICATES AND TRANSFERS
Section 5.1 Stock Certificates and Transfers.
A. The interest of each stockholder of the Corporation shall be evidenced by certificates for
shares of stock in such form as the appropriate officers of the Corporation may from time to time
prescribe. The shares of the stock of the Corporation shall be transferred on the books of the
Corporation by the holder thereof in person or by his attorney, upon surrender for cancellation of
certificates for the same number of shares, with an assignment and power of transfer endorsed
thereon or attached thereto, duly executed, and with such proof of the authenticity of the
signature as the Corporation or its agents may reasonably require.
B. The certificates of stock shall be signed, countersigned and registered in such manner as
the Board of Directors may by resolution prescribe, which resolution may permit all or any of the
signatures on such certificates to be in facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased
to be such officer, transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of
the fact that he or she is or was a director or officer of the Corporation or, while a director or
officer of the Corporation, is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to an employee benefit plan (hereinafter an
10
“indemnitee”), where the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than permitted prior
thereto), against all expense, liability and loss (including attorneys’ fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by
such indemnitee in connection therewith and such indemnification shall continue as to an indemnitee
who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the
indemnitee’s heirs, executors and administrators; provided, however, that, except
as provided in Section 6.3 hereof with respect to proceedings to enforce rights to indemnification,
the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part
thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by
the Board of Directors of the Corporation.
Section 6.2 Right to Advancement of Expenses. The right to indemnification conferred
in Section 6.1 shall include the right to be paid by the Corporation the expenses incurred in
defending any proceeding for which such right to indemnification is applicable in advance of its
final disposition (hereinafter an “advancement of expenses”); provided, however,
that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by an
indemnitee in his or her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from which there is no
further right to appeal
(hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified
for such expenses under this Section or otherwise.
Section 6.3 Right of Indemnitee to Bring Suit. The rights to indemnification and to
the advancement of expenses conferred in Section 6.1 and Section 6.2, respectively, shall be
contract rights. If a claim under Section 6.1 or Section 6.2 is not paid in full by the
Corporation within sixty days after a written claim has been received by the Corporation, except in
the case of a claim for an advancement of expenses, in which case the applicable period shall be
twenty days, the indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in
a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (A) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (B) in any suit by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking the Corporation shall be
entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any
applicable standard for indemnification set forth in the Delaware General Corporation Law. Neither
the failure of the Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation Law,
11
nor an actual
determination by the Corporation (including its Board of Directors, independent legal counsel, or
its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create
a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by
the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the
burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Section or otherwise shall be on the Corporation.
Section 6.4 Non-Exclusivity of Rights. The rights to indemnification and to the
advancement of expenses conferred in this Section shall not be exclusive of any other right which
any person may have or hereafter acquire under the Certificate of Incorporation, these Bylaws, or
any statute, agreement, vote of stockholders or disinterested directors or otherwise.
Section 6.5 Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against any expense, liability
or loss, whether or not the Corporation would have the power to indemnify such person against such
expense, liability or loss under the Delaware General Corporation Law.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1 Fiscal Year. The fiscal year of the Corporation shall begin on the first
day of January and end on the thirty-first day of December of each year.
Section 7.2 Dividends. The Board of Directors may from time to time declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon the terms and
conditions provided by law and its Certificate of Incorporation.
Section 7.3 Seal. The corporate seal shall have inscribed the name of the Corporation
thereon and shall be in such form as may be approved from time to time by the Board of Directors.
Section 7.4 Waiver of Notice. Whenever any notice is required to be given to any
stockholder or director of the Corporation under the provisions of the Delaware General Corporation
Law, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be deemed equivalent to the giving of such notice.
Neither the business to be transacted at, nor the purpose of, any annual or special meeting of the
stockholders of the Board of Directors need be specified in any waiver of notice of such meeting.
Section 7.5 Audits. The accounts, books and records of the Corporation shall be
audited upon the conclusion of each fiscal year by an independent certified public accountant
12
selected by the Board of Directors, and it shall be the duty of the Board of Directors to cause
such audit to be made annually.
Section 7.6 Resignations. Any director or any officer, whether elected or appointed,
may resign at any time by serving written notice of such resignation on the Chairman of the Board,
the Chief Executive Officer or the Secretary, or by submitting such resignation by electronic
transmission (as such term is defined in the Delaware General Corporation Law), and such
resignation shall be deemed to be effective as of the close of business on the date said notice is
received by the Chairman of the Board, the Chief Executive Officer, or the Secretary or at such
later date as is stated therein. No formal action shall be required of the Board of Directors or
the stockholders to make any such resignation effective.
Section 7.7 Contracts. Except as otherwise required by law, the Certificate of
Incorporation or these Bylaws, any contracts or other instruments may be executed and delivered in
the name and on the behalf of the Corporation by such officer or officers of the Corporation as the
Board of Directors may from time to time direct. Such authority may be general or confined to
specific instances as the Board may determine. The Chairman of the Board, the Chief Executive
Officer, the President or any Vice President may execute bonds, contracts, deeds, leases and other
instruments to be made or executed for or on behalf of the Corporation. Subject to any
restrictions imposed by the Board of
Directors or the Chairman of the Board, the Chief Executive Officer, the President or any Vice
President of the Corporation may delegate contractual powers to others under his jurisdiction, it
being understood, however, that any such delegation of power shall not relieve such officer of
responsibility with respect to the exercise of such delegated power.
Section 7.8 Proxies. Unless otherwise provided by resolution adopted by the Board of
Directors, the Chairman of the Board, the Chief Executive Officer, the President or any Vice
President may from time to time appoint any attorney or attorneys or agent or agents of the
Corporation, in the name and on behalf of the Corporation, to cast the votes which the Corporation
may be entitled to cast as the holder of stock or other securities in any other corporation or
other entity, any of whose stock or other securities may be held by the Corporation, at meetings of
the holders of the stock and other securities of such other corporation or other entity, or to
consent in writing, in the name of the Corporation as such holder, to any action by such other
corporation or other entity, and may instruct the person or persons so appointed as to the manner
of casting such votes or giving such consent, and may execute or cause to be executed in the name
and on behalf of the Corporation and under its corporate seal or otherwise, all such written
proxies or other instruments as he may deem necessary or proper in the premises.
ARTICLE VIII
AMENDMENTS
Section 8.1 Amendments. Subject to the provisions of the Certificate of
Incorporation, these Bylaws may be adopted, amended or repealed at any meeting of the Board of
Directors by a resolution adopted by a majority of the Whole Board, provided notice of the proposed
change was given in the notice of the meeting in a notice given no less than twenty-
13
four (24) hours
prior to the meeting. Subject to the provisions of the Certificate of Incorporation, the
stockholders shall also have power to adopt, amend or repeal these Bylaws, provided that notice of
the proposed change was given in the notice of the meeting and provided further that, in addition
to any vote of the holders of any class or series of stock of the Corporation required by law or by
the Certificate of Incorporation, the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the voting power of all of the then-outstanding shares of the
capital stock of the Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to adopt, amend or repeal any provision of these
Bylaws.